Henry v. Missouri, Kansas & Texas Railway Co.

92 Kan. 1017 | Kan. | 1914

The opinion of the court was delivered by

Mason, J.:

An action was brought in the district court of Crawford county against the Missouri, Kansas & Texas Railway Company, a Kansas corporation, for damages on account of personal injuries received by the plaintiff while working in a coal mine of the defendant in Cherokee county. Service was made by delivering a copy of the summons to an agent of the company in Crawford county. The defendant filed what is called a special plea to the jurisdiction, limiting its appearance to that purpose. The plea alleged that the principal place of business of the defendant is in Labette county; that none of its principal officers reside in Crawford county or may be summoned therein; that the injuries complained of were not received upon the defendant’s railroad, nor within Crawford county; that the action was not brought upon its liability as a carrier; and that therefore the court had no jurisdiction of the defendant or the subject matter of the action. A demurrer to this plea was sustained, and the defendant appeals.

The plaintiff maintains that the order sought to be reviewed is not appealable. The code authorizes an appeal from the overruling of a demurrer, and we shall assume without deciding that the ruling here involved is of that character, although the special plea partakes of the nature of a motion to quash the summons, and the demurrer to it may be regarded as a challenge of the sufficiency of the motion on its face.

The defendant maintains that the action was not rightfully brought in Crawford county, and relies upon a section of the statute reading as follows:

“An action, other than one of those mentioned in the first three sections of this article, against a corporation created by the laws of this state or of the territory of Kansas, may be brought in the county in which it is situated, or has its principal office or place of business, or in which any of the principal officers thereof may reside, or may be summoned; but if such corporation be an insurance company, the action may be brought in the county where the cause of action, or some part thereof, arose, or where the plaintiff resides. But the provisions of this article shall not apply in the case of any corporation created by a law of this state or the territory of Kansas whose charter prescribes the place where alone a suit against such corporation may be brought.” (Civ. Code, § 51.)

The contention that this section does not authorize the bringing of the present action in Crawford county is apparently sound. But the language of the statute is that actions may be brought in the counties there described, not that they must be. The three preceding sections referred to in the part of the statute quoted relate to strictly local actions, which “must” be brought in specified counties. . The several subsequent sections are by their terms permissive only; their reading is that the actions they describe “may,” not “must,” be-brought in certain counties. Then follows this section: “Every other action must be brought in the county in which the defendant or some one of the defendants reside or may be summoned.” (Civ. Code, § 55.) This is essentially declaratory of the common law. In the absence of a statute to the contrary, a transitory action may be brought wherever the defendant may be summoned. (40 Cyc. 107. ) The substance of the section is that, except in the cases previously enumerated, an action can only be brought in the county where the defendant resides or may be summoned. The preceding section, which prior to the revision of 1909 provided merely that actions of divorce might be brought in the county of the plaintiff’s residence, was rendered exclusive and mandatory by the statute requiring the plaintiff to be a resident of the county. (Civ. Code, § 664.) The distinction between strictly local and quasi-local actions was recognized in Reynolds v. Williamson, 68 Kan. 239, 74 Pac. 1122, where the section above quoted was said to “relate to actions not strictly local, but which may be brought in special counties, determined by various conditions.” (p. 241.)

An action by an employee against his employer for damages on account of personal injuries is not local, but transjtory. It may be brought wherever the defendant may be summoned. A railroad corporation may be summoned in any county where it has a station agent, because service may be had upon him unless some other agent has been designated for the purpose. (Civ. Code, § 72.)

We think the demurrer to the defendant’s special plea to the jurisdiction was properly sustained on the grounds indicated, and the judgment is therefore affirmed.